Madras High Court
The Secretary To Government vs Josuva Jebakumar on 10 December, 2009
Bench: D.Murugesan, S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/12/2009 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.A.(MD).Nos.446 to 461 of 2009 and W.A.(MD).No. 224 of 2009 and M.P.Nos.2,2,2,2,2,2,2,2,2,2,2,2,2, 2,2,2, 3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3 and 2 of 2009 1.The Secretary to Government, Health and Family Welfare Department, Fort.St.George, Chennai. 2.The Director of Public Health and Preventive Medicine, Chennai. 3.The Commissioner, Employment and Training Department, Guindy, Chennai 600 032. ... Appellants in W.A.(MD).Nos.446 to 461 of 2009 Vs 1.Josuva Jebakumar ... Respondent in W.A.(MD).No.446 of 2009 2.A.Anantha Selvi ... Respondent in W.A.(MD).No.447 of 2009 3.L.Murugeswari ... Respondent in W.A.(MD).No.448 of 2009 4.P.Rajakumar ... Respondent in W.A.(MD).No.449 of 2009 5.S.Karthikeyan ... Respondent in W.A.(MD).No.450 of 2009 6.K.Rajeswari ... Respondent in W.A.(MD).No.451 of 2009 7.S.Lalitha ... Respondent in W.A.(MD).No.452 of 2009 8.G.Muthamil Selvi ... Respondent in W.A.(MD).No.453 of 2009 9.T.Amutha Kalaivani ... Respondent in W.A.(MD).No.454 of 2009 11.G.Thirupathy ... Respondent in W.A.(MD).No.455 of 2009 12.K.Balaji ... Respondent in W.A.(MD).No.456 of 2009 13.S.Balamurugan ... Respondent in W.A.(MD).No.457 of 2009 14.D.Meenakshi Ammal ... Respondent in W.A.(MD).No.458 of 2009 15.C.Subathra ... Respondent in W.A.(MD).No.459 of 2009 16.A.Thulasiraman ... Respondent in W.A.(MD).No.460 of 2009 17.S.Ashok ... Respondent in W.A.(MD).No.461 of 2009 In W.A.(MD).No.224 of 2009 1.K.Sundanthira Pandy 2.Prasanna Kumar ... Impleaded Respondents/Appellants vs 1.S.Balamurugan 2.1.The Secretary to Government, Health and Family Welfare Department, Fort.St.George, Chennai. 3.The Director of Public Health and Preventive Medicine, Chennai. 4.The Commissioner, Employment and Training Department, Guindy, Chennai 600 032. : Respondents in W.A.(MD).No.224 of 2009 PRAYER in W.A.(MD).Nos.446 to 461 of 2009 Writ Appeals are filed under Section 15 of the Letters Patent against the Order dated 11.02.2009 made in W.P.(MD).Nos.10442, 10495, 11018 to 11023, 11474 to 11478 and 11411 to 11423 of 2008. PRAYER in W.A.(MD).No.224 of 2009 Writ Appeal is filed under Section 15 of the Letters Patent against the Order dated 11.02.2009 made in W.P.(MD).No.10495 of 2008. In W.A.(MD).Nos.446 to 461 of 2009 !For Appellants ... Mr.Ramaswamy Advocate General For Mr.R.Janakiramalu Special Government Pleader ^For Respondents In W.A.(MD).Nos.446 to 448, 450, 453, 456 and 458 of 2009 of 2009 ... Mr.M.Ajmal Khan In W.A.(MD).No.224 of 2009 For Appellants ... Mr.T.Lajapathi Roy For Respondents1 to3 ... Mr.Ramaswamy Advocate General For Mr.R.Janakiramalu Special Government Pleader For Respondent 4 ... Mr.Ajmal Khan :COMMON JUDGMENT
Since common issues are involved in all these Writ Appeals, they were heard together and they are disposed of by means of this Common Judgment.
2. Challenging the common Order of the Writ Court, quashing the Government Order issued in G.O.Ms.No.335, Health and Family Welfare (EAP 1/2) Department, dated 15.10.2008, the official respondents in the Writ Petitions have come up with W.A.(MD)Nos.446 to 461 of 2009. The appellant in W.A.(MD.No.224 of 2009 has got himself impleaded before the Writ Court in W.P.(MD).No.10495 of 2009. Challenging the very same common Order, he has come up with the said Writ Appeal.
3. The Writ Petitioners claim that they have got basic qualification for being appointed as Lab Assistants in the Health and Family Welfare Department. Admittedly, they have registered their names with the local Employment Exchange. During the year 1998, there were total number of 413 vacancies, out of which, the Director of Public Health and Preventive Medicine, Chennai, notified 171 vacancies to the local Employment Exchange. In response to the said notification, the Commissioner of Employment and Training Department, Guindy, Chennai, sponsored 1292 candidates including the Writ Petitioners in the ratio of 1:5. It was also proposed by the Director of Public Health and Preventive Medicine, Chennai, to fill up the remaining vacancies by absorbing the Laboratory Technicians/Laboratory Supervisors, who are working in the Revised National Tuberculosis Control Programme for more than five years and to satisfy the educational qualification prescribed in the Rules for the post of Laboratory Technicians Grade III in terms of the above said Government Order.
4. According to the Writ Petitioners, the said Government Order impugned in the Writ Petitions, which is an administrative order, cannot override the Special Rules for Tamil Nadu Public Health and Subordinate Service Rules, according to which, the post of Laboratory Technician Grade III can be filled up only by way of direct recruitment. It was further contended that because major chunk of the vacancies have been reserved for certain candidates, who are already in service, as indicated above, the Writ Petitioners, who are fully eligible for the said post, are kept out of the purview of consideration, and thus, there is gross violation of Articles 14 and 16 of the Constitution of India.
5. However, it was contended by the official appellants before the Writ Court that the Government Order impugned in the Writ Petitions was issued in the following circumstances, viz., If candidates are recruited through Employment Exchange to fill up these vacancies, junior candidates to these persons now working in the Revised National Tuberculosis Control Programme (Government Programme) will get regular employment in Government Service whereas the Seniors who were appointed through paper advertisement with rich experience in the Medical Institutions could not get absorbed against the regular appointments as most of them are over aged and many of them are working in the programme for more than nine years. However, the services of the Laboratory Technicians and Laboratory Supervisors are being utilized in "Varumun Kappom Thittam" Camps and other Public Health Programmes. In those circumstances, the Government decided to accept the recommendations of the State Tuberculosis Officer and Director of Public Health and Preventive Medicine so as to issue a direction for absorption of these Laboratory Technicians/Laboratory Supervisors, who are working in the Revised National Tuberculosis Control Programme for more than five years and who are fully qualified.
6. It was further contended before the Writ Court that after filling up the vacancies from out of the qualified service candidates, the remaining vacancies would be filled up by selecting the suitable candidates sponsored through the Employment Exchange. It was also contended that there is no discrimination, as it is contended by the Writ Petitioners.
7. Having considered all the above, by a common Order dated 11.02.2009, a learned Single Judge of this Court allowed all the Writ Petitions thereby quashing the impugned Government Order. It is the said Order, which is under challenge in these Writ Appeals.
8. It is contended by the learned Special Government Pleader appearing for the official appellants that after all, these service candidates were appointed only by means of proper selection, and therefore, there is neither illegality nor irregularity in giving preference to them to absorb them as against the regular vacancies. This, according to the official appellants, was done under the Government Order impugned in the Writ Petitions, not only by having regard to the welfare of the service candidates, who are eligible, but also in the interest of the department and the interest of the public at large.
9. We have considered the rival submissions and perused the records carefully. In our considered opinion, though the object of the Government Order in question is laudable, the procedure adopted by the official appellants is wholly without jurisdiction. It is too well settled, on several occasions, by the Hon'ble Supreme Court as well as this Court that administrative/executive orders, administrative/executive circulars and guidelines cannot override the Service Rule issued by the Government in exercise of the power conferred under Article 309 of the Constitution of India. In the cases on hand, as per the Special Rules governing these posts, the appointment can be made only by means of direct recruitment. The said Rule does not speak of any reservation for any service candidate or any other qualification, like, experience. Indisputably, the Government Order impugned in the Writ Petitions has not been issued in exercise of power conferred under Article 309 of the Constitution of India, but instead, it is only an executive order and the same cannot override the Service Rules. When there is such a conflict between the Government Order and the Statutory Service Rules, there can be no hesitation to declare the said Government Order as null and void. Further, allotting a major chunk of vacancies exclusively for the service candidates so as to exclude the participation of the fresh candidates would amount to reservation, which is not permissible under the Constitution, as such reservation would violate Articles 14 and 16(2) of the Constitution of India. In our considered opinion, all the available vacancies should be kept open for all eligible candidates to compete, of course subject to the reservation, like reservation for SC/ST, MBC, BC etc., which have got the sanction of the Constitution. For all these reasons, we are of the considered view that the impugned Government Order is liable to be quashed. The learned Single Judge has rightly done so.
10. At this juncture, it would be worthwhile to refer to a Judgment of a Full Bench of this Court in Sivakumari, R. v. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam reported in 2007 (5) CTC 561 [to which one of us JUSTICE S.NAGAMUTHU is a party]. In the said Judgment, after referring to the Judgments of the Hon'ble Supreme Court in Union of India and others v. N.Hargobal reported in 1987 (3) SCC 308, Exercise Superintendent Malkapatnam, Krishna District v. K.B.N.Visweshwara Rao and others reported in 1996 (6) SCC 216 and lastly in Arun Kumar Nayak v. Union of India and others reported in 2006 (8) SCC 111, in paragraph 24, the Full Bench has held as follows:-
"Therefore, if the recruitment of about four thousand Secondary Grade Teachers to the Government Schools were to be made in accordance with the law laid down by the Supreme Court, the respondents ought to have followed the following procedure, namely;-
A. Notify the Employment Exchange.
B. Issue publications in newspapers having wide circulation, inviting applications.
C. Display the notification in the notice boards of the respective offices or make announcements in the media".
11. In the case on hand, it is needless to say that the official appellants have to scrupulously follow the above law laid down by the Hon'ble Supreme Court and followed by the Full Bench of this Court. But, the impugned Government Order is directly in conflict with the above legal dictum, and therefore, the same cannot withstand the legal scrutiny. However, Mr.T.Lajapathi Roy, learned counsel appearing for the appellants in W.A.(MD).No.224 of 2009 would place reliance on a recent Judgment of the Hon'ble Supreme Court in Harmider Kaur v. UOI reported in 2009 (7) MLJ 1109, wherein, the Hon'ble Supreme Court, in paragraph 18, has held as follows:-
"We, therefore, are of the opinion that the High Court was correct in its view. We were, however, informed that 800 posts of teachers are lying vacant. Ms.Kamini Jaiswal informed that the Administration is ready and willing to fill p the said posts on a regular basis. While doing so, we have no doubt in our mind that the cases of the appellants shall also be taken into consideration and the Administrator may consider the desirability of relaxing the age limit provided for in the Rules".
12. Drawing support from the said Judgment, the learned counsel would submit that while making selection, at least, preference may be given to the appellants in W.A.(MD).No.224 of 2009 by the Department over the fresh candidates, since they have rendered more than five years of continuous service in the department, that too, by having been appointed on merit basis.
13. In this regard, we would like to clarify that we have only concurred with the findings of the learned Single Judge to quash the impugned Government Order, because the same runs counter to the Service Rules and it grossly violates Articles 14 and 16 of the Constitution of India, as the impugned Government Order creates a reservation of certain number of vacancies for the candidates, who are already in service. But, it cannot be construed that this Court has expressed any opinion that the candidates, who have been in service, should not be given any preference.
14. It is submitted by the learned Special Government Pleader that the selection was sought to be made on the basis of interview. If that is the case, while conducting interview, for assessing merit, the department can evolve its own procedure and guidelines for allotting marks under the various heads. While doing so, the Government is at liberty to award marks for previous experience, as the same would be an added qualification for the candidates, who have been already working. Similarly, for these service candidates, the Government may relax the age qualification also. We would like to say that by adopting such a procedure of selection, which is fair, the meritorious candidates should alone be selected and appointed.
15. In view of all the above, we do not find any infirmity in the Order of the learned Single Judge warranting interference. In the result, all the Writ Appeals fail and the same are, accordingly, dismissed, however, with the clarification as indicated above. No costs. Consequently, connected Miscellaneous Petitions are closed.
NB To
1.The Secretary to Government, Health and Family Welfare Department, Fort.St.George, Chennai.
2.The Director of Public Health and Preventive Medicine, Chennai.
3.The Commissioner, Employment and Training Department, Guindy, Chennai 600 032.